MANGILAL NARSINGDAS GATTANI Vs. SHALIGRAM UKARDA PAYGHAN

JUDGEMENT

(1.) REGULAR Civil Suit No. 169 of 1974 was instituted by the applicant, who is the Decree-holder, for the recovery of an amount of Rs. 1,960. 40. The suit came to be decreed on 21. 9. 1974. The applicant thereafter took out execution proceedings in the form of Regular Darkhast No. 98 of 1984. On 19. 9. 1984 summons in the execution proceedings came to be served on the respondent, who was the judgment-debtor. A warrant of attachment in pursuance thereof was issued on 4. 4. 1985 and the warrant of attachment was served, on the judgment-debtor on 10. 6. 1985. On 5. 11. 1985 the sale proclamation under o. XXI, r. 66 of the Code of Civil Procedure came to be settled and it is common ground that the judgment-debtor was present through his Advocate, Mr. Nikus. On 19. 12. 1985, since the warrant in pursuance of the sale proclamation ha"d not been served on the judgment-debtor, a fresh date was granted by the Executing Court. On 11. 2. 1986 when the matter came up before the Executig Court the judgment-debtor was served and had appeated thyrough hie Advocate and a fresh sale schedule was accordiingly fixed salecl amatlon at Ex. 18 came to be issued. The sale, in pursuance of the execution proceedings, took place on 2. 5. 1986 and the decree-holder, the applicant herein, purchased the property at and for a consideration of Rs. 3. 000/ -. Thereafter, it is common ground, the objections under o. XXI, r. 58 were filed by wife and the sons of the judgment-deb tor, but these were rejected. Almost five years after the sale took place on 11. 4. 1991 the judgment-debtor, the respondent herein, deposited before the Executing Court the decretal dues of Rs. 2. 200/- and on 20. 4. 1991 he further deposited an amount of Rs. 245/- on account of costs of execution and poundage fee. On 26. 4. 1991 an application was filed by the respondent under o. XXI, r. 89 of the Code of Civil procedure for depositing the amount. On 29. 4. 1991 the respondent there-after filed an application at Ex. 50 for setting aside the sale. The learned counsel for the respondent has stated that this was presumably under o. XXI, r. 90, since the basis of that application was that there was material irregularity and fraud in the conduct of the sale. The application was dismissed on 20. 8. 1993 by the Executing Court, which held that there was no objection in accordance with rr. 89, 90 and 91 of o. XXI. The sale was confirmed and the sale certificate was directed to be issued in the name of the applicant in respect of the land which was put to auction. The respondent appealed against the order of the Executing Court and by the impugned order of the learned Additional District Judge passed on 30. 6. 1995 the appeal came to be allowed and the order of the Executing Court confirming the sale was quashed and set aside.

(2.) THE learned Additional District Judge, by the impugned order dated 30. 6. 1995, has set aside the auction sale on the ground that in the sale proclamation issued by the Executing Court the existence of a well and mango trees in the suit property had not been mentioned. The learned additional District Judge was of the view that this would augment the price of the land. The principal defence to the objection of the respondent that was urged before the learned Additional District Judge by the applicant was that the application which was filed by the respondent on 29. 4. 1991 was clearly beyond the period of limitation. This was answered by the Appellate court holding that the son of the respondent had filed an application in the year 1989 raising the same plea and since the application, which was filed by the respondent, was before the confirmation of the sale, the question of limitation was not involved. Besides, in the view of the learned Additional district Judge, the application which was moved by the respondent could well be treated as an application under o. XXI, r. 90 of the Code of Civil procedure for setting aside the sale. These are the reasons which have weighed with the learned Additional District Judge. 3in assailing the correctness of the view, which has been taken by the learned Additional District Judge, the learned Counsel appearing on behalf of the applicant has urged that under Article 127 of the Schedule to the limitation Act, the period of limitation for moving an application for setting aside the sale in the course of execution is sixty days. The application which was filed on behalf of the respondent on 29. 4. 1991, after a lapse of five years from the date of sale which took place on 2. 5. 1986, it was submitted, was beyond limitation. Secondly, it was urged that under o. XI, r. 66, notice is required to be issued to the decree-holder and the judgment-debtor before the sale proclamation is finalised, that notice was issued and the respondent appeared throughout through an Advocate. At no stage was an objection to the sale proclamation raised on the ground that there was no mention of the well or of mango trees. Reliance was placed on the provisions of o. XXI, r. 90 (3) for submitting that an objection which could have been raised by the respondent on or before the issuance of the proclamation should not be used to sustain a challenge to the sale when the objection was not raised at the appropriate time when the sale proclamation was finalised under o. XXI, r. 66 of the Code of Civil Procedure.

(3.) ON behalf of the respondent, on the other hand, the order of the learned Additional District Judge was sought to be sustained. The learned counsel for the respondent urged that the application under o. XXI, r. 90 of the Code of Civil Procedure ought to have been disposed of before the sale was confirmed and reliance was placed, inter alia, on the judgment of a learned Single Judge (Ratnam, J.) of the Madras High Court in the case of ramafcrishna Reddiar and others v. Pichammal and others, Reliance was also placed on the decision of the Supreme Court in Gajadhar Prasad and, others v. Babu Bhakta Ratan and others, in which it has been observed that the essential facts which have a bearing on the very material question of the value of the property and which would assist the purchaser in forming his own opinion must be stated.